Arizona, Illegals, and the Rights of States

The states rediscover their forgotten powers.

As generally seems to happen when things don't go his way, Mr. Obama got all huffy last week when Arizona passed a law making clear what should be obvious: illegal immigrants are, um, illegal, and police should arrest them as they arrest other lawbreakers. The Wall Street Journalreports:

Mr. Obama said he instructed the Justice Department to "examine the civil rights and other implications" of the new law. [emphasis added]

This is not a civil rights issue. Illegal aliens have human rights, of course, but, because they are not citizens, they have no civil rights.

Justice officials said they were considering their options, and it wasn't clear Friday what they might do.

Doubtless not; it's hard to see how anyone could successfully argue before the Supreme Court, where the question would inevitably wind up, that enforcing existing laws is illegal. Arizona has simply gotten fed up with twenty years of Federal negligence about what should be its very first priority, that of defending our borders, and decided simply to do the job with its own local police.

However, in so doing, Arizona is underscoring a long-running question strung all throughout American history: the question of states' rights.

No, Not Just For Slavery

In the years following the Civil War, the concept of states' rights has gotten an understandably bad reputation because the South used that argument as justification for the evil practice of slavery. Obviously, that was wrong.

However, just because the slave states used a wrong reason for an evil practice does not mean that they had no point at all. On the contrary: our Constitution specifically says that the states and the people hold all power, and the Federal government only has specific, limited powers delegated thereto:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Prior to the establishment of the Constitution, the United States operated under the Articles of Confederation, and before that, in the somewhat informal cooperative of the Continental Congress. Here in modern America, we've gotten used to thinking of "states" as something less than independent nations, but under the rules of the time, that's exactly what they were.

Independent states can, of course, voluntarily limit their powers via international agreements through treaties or other agreements, which is what the Constitution effectively was. Where the Constitution grants power to the Federal government, the states cannot override a law passed by Congress.

This, however, is not what Arizona is doing. In fact, it's doing exactly the opposite: the new Arizona law simply allows local police to enforce the immigration laws already on the books.

Arizona isn't declaring people to be illegals who Congress has said are legally allowed to be here. Everyone arrested and deported by the Arizona authorities will be people who the Federal government should have prevented from coming in at the border, if they were doing their job, or arrested already if they weren't so busy violating our rights in other areas.

The state of Arizona is simply claiming its right to enforce existing laws. If we were invaded by the Russians, would American cops stand around waiting for the Army, national defense being a power delegated to the Feds? Of course not - they'd start shooting. How is a slow-moving invasion by illegal immigrants any different?

Mr. Obama now finds himself in a sticky situation. The open-borders advocates on the Left are already angry that he hasn't passed a blanket amnesty yet; he can't very well just ignore Arizona's new law.

On the other hand, trying to stop Arizona by force of law won't work either. If a court found Arizona's efforts unlawful, the decision would certainly be appealed up the line, infuriating most Americans every step of the way. If, on the other hand, the court found Arizona well within its rights - the most likely outcome - the gates would be wide open for other states to do the same thing, expelling their own illegals too.

Not only would this deprive the Democratic Party of a rich potential source of new votes, it would unveil for all to see the fundamental principle deadly to statists: the Federal government is not all powerful and isn't supposed to be. A state which can police its own borders is a state which can regulate its own health care system, manufacture its own guns, or do a whole host of other things that our states have gotten out of the habit of doing - but which they could, if they wished.

Governors, like any other politician, do enjoy wielding more power rather than less. That's the way the Founding Fathers designed our nation to work; it's time our leaders remembered it.

While I commend Arizona on showing courage, and I greatly support federalism, the law that was enacted was bad.

You said:

"the new Arizona law simply allows local police to enforce the immigration laws already on the books"

That is both inaccurate and deceptively incomplete.

The new law REQUIRES (not allows) police officers to question, and potentially arrest, anyone they THINK (not know) is an illegal immigrant. There is no existing law on the books that mandates that.

The executive branch of government is supposed to investigate crime based on evidence. Here, we're talking about random roundups based on guesswork. "That guy is brown; throw him in the wagon". That is an egregious abuse of government power, and turned against conservatives -as it surely could be - it will allow the seizure and harassment of anyone the Arizona government desires.

What Arizona has done is set up the beginning of a strictly-defined Police State. Any police officer will now be able to detain anyone for questioning at any time under the all-encompassing reason of "you might be illegal" without the peskiness of probable cause. Police officers already abuse existing laws when tired or irritated. They will surely abuse this one.

Many of the same conservatives that opposed the Patriot Act should realize that this law gives government officials the same type of wide-spread power to do what they want under generic pretense. In the case of the Patriot Act, terrorism. In this case, illegal immigration.

The saddest part of all is that there is no need for this law. There are plenty of better approaches that could be taken to turn off the immigration valve.

Right at the top - find and arrest employers that hire illegals. To catch 'johns', police officers dress up like prostitutes and arrest anyone that asks them for sex. The exact same thing could be done to stop illegal immigration. Every day, a cop could dress up like a 'day worker', hang out near Home Depot and wait to be picked up. The second the employer pays them in cash and drops them off, bam! -- he's arrested and sent to jail for a minimum of 30-60 days. You do that a few times in a city, EVERY employer will stop INSTANTLY. The job market will dry up and the illegals will go home. No employer wants cheap labor so much that he's willing to risk jail time and a hefty fine.

To be clear, I am glad Arizona made a stand. States need to assert their rights early and often. And the stand they took may even be worth the bad law that was enacted simply because of the precedent it makes for other watching states. But it is, without question, a horrible law.

April 26, 2010 7:56 AM

A.L.PURI said:

'How is a slow-moving invasion by illegal immigrants any different?' More than 200 years back who had 'Civil rights' to invade the real Americans ("RED INDIANS") out? Some illegal immigrants from England ? Mr. Petrarch. Read Seattle Chief's letter to your ancestors, Sir. By the way who were those Africans ,chain locked, loaded in your ships, brought to develop North American Infra structure-- land, agriculture, roads, industry , construct statue of Liberty and White house to Transform it to The United States Of America, today you are boosting on. No hurting meant, all immigrants in USA have all civil rights and Aboriginals, only have human rights. Double standards induce lot of stresses & strains.Let allow President Obama to undo some of the Wrongs,foryourhealing.

April 26, 2010 9:05 AM

lfon said:

Case in point...

A well-known restaurant in San Diego may be getting seized (the entire restaurant and property) by the feds because the owners were known to hire illegals.

That was a GOOD law. Landlords already verify employment and ID anyway. Requiring landlords to ensure legality is any easy part of that process.

Renting is a transaction that anyone can CHOOSE to enter it, or not, as they wish. No police officer has to get involved or pre-judge someone's guilt while doing this. No one is pre-judged at all. Nothing happens as long as you do nothing. If you want to rent, you have to be legal.

April 26, 2010 12:16 PM

Karl Ketzer said:

A.L.PURI wrote:>'How is a slow-moving invasion by illegal immigrants any different?' More than 200 years back who had 'Civil rights' to invade the real Americans ("RED INDIANS") out?

The American Indians had an open-borders immigration policy, and look what happened to them.

And that supposed letter from Chief Seattle? The truth is that he never wrote it; a New York City playwright named Ted Perry did. http://www.holysmoke.org/hs02/seattle.htm

And what does the importation of African slaves have to do with the current immigration debate anyway? I'll tell you. Large agricultural interests wanted masses of cheap docile labor, long-term consequences for the country be damned. Sound familiar?

April 26, 2010 1:16 PM

Petrarch said:

Actually, lfon, you are incorrect. The law calls for police officers to stop anyone they have PROBABLE CAUSE to believe is an illegal immigrant.

What exactly does that mean? The law doesn't say. Various news reports have said that the local police departments are undergoing special training on the subject, for example, specifically against racial profiling.

As written, the law seems totally legal and reasonable. As enforced, it may or may not be, we'll have to wait and see.

Obviously, I agree that the police should be going after employers of illegals too. But your example of picking up day workers is a bad one. I am not aware of any law making it illegal to pick up someone for one day's work and pay them in cash if it's under a certain amount (I think $600 but I might be wrong.)

There are reporting requirements for larger sums of money, and I have no problem with those being enforced. It might take a longer investigation, say, the "illegal" working for a week for the same guy to reach the legal reporting limit, then arresting the employer for failure to comply with employment law.

April 26, 2010 5:29 PM

lfon said:

Petrach, you've just proved my point.

There is no probable cause other than what the police officer decides on the scene. The whole point of this new law is to CREATE probable cause, which is basically racial profiling combined with geographical location combined with immigration stats (ie. brown guy + Phoenix + 90% Mexican illegals = guy is guilty).

The "learning not to profile" stuff is total BS. What else is there?

Think about it... If there was some other probable cause, there would be no need for this law. Probable cause is why crimes are investigated to begin with. No one needs to tell a police officer to investigate a crime if probable cause already exists. That's tautological. This law was put in place to CREATE probable cause where none exists.

You've fallen for the Republican talking points on this one. Sadly, so has Rush and Sean and all the rest.

And you'd dead wrong on the $600 too. Completely wrong. $600 is the limit for the ENTIRE YEAR as an undeclared cash earning, not per day. Anyone that is picked up for a day's work - of any kind, in any place - must have either wages withheld against a future W2 or their wages must be recorded against a future 1099. If, at the end of the year, the 1099 is $600 or less, the employer can choose not to file it at that time.

I'm pretty sure you already knew that. You're a smart guy. You really think $600 per day x 250 working days per year ($150,000) can be taken tax free so long as you get it from a new person every day? Come on.

April 26, 2010 7:38 PM

Petrarch said:

lfon, I never said that you could tax-freely earn $600 per day. That's quite a lot of money, actually I don't think I earn that much myself (more's the pity.)

BUT, I am willing to bet you that not very many illegals earn more than $600 in one single day. So if your undercover cop goes out to work for cash and collects (say) $100, I don't think his employer would be breaking any law YET. The undercover cop would have to keep working the whole week, for cash, for the same employer, and collect more than the statutory $600 in order for there to be a law broken. Remember, the burden of proof of a crime is on the prosecution.

Regarding the question of probable cause, you may have a point - but then, you may not. I can think of several other rational "probable causes" that have nothing whatsoever to do with skin color - e.g. speaking a foreign language in a public place, or participating in a pro-amnesty protest. Neither of which activities are illegal, but they aren't related to race either, and they certainly would give a rational person cause to wonder about immigration status. Which, again, can easily be disproven by showing an ID, as the Supreme Court has already ruled is Constitutional for the cops to demand.

April 26, 2010 8:07 PM

lfon said:

As much as I dislike the new law, it sure is producing some nice results.

In a Reuters interview:

"[This is] going to create havoc, so a lot of them are saying, 'Look, before they pick me up, I'd rather leave the state of Arizona either to another state or back home,'" he added.

The poor fool who said this - a liberal No Borders activist - doesn't even realize what he's saying.

That's exactly what SHOULD be going on, you moron! Illegals are heading to a different state or going home. Arizona 1, illegals 0.

http://www.reuters.com/article/idUSTRE63P5WK20100426

Hmmm, maybe I should pocket my opposition on this one and ride it out.

April 27, 2010 11:19 AM

rearden said:

Couple points on @lfon and @petrarch: - This law actually does make it illegal to pick up day laborers, and illegal for illegals to solicit work - My reading of the law is that if, in the course of their daily business an officer comes across someone they think might be an illegal, they should question them to find out. It doesn't encourage officers to go out and find people, but if they are already questioning someone, have pulled them over, or arrested them, and if they have a reasonable suspicion that they are an illegal, they are to ensure they are in fact legal. Legal aliens are already required by federal law to carry their registration papers with them at all times.- The law is extremely broad in what it accepts as proof of legality: AZ drivers licenses, ID cards, tribal ID cards, and any US fed/state/local ID (that requires proof of presence, which is pretty much everything)

April 28, 2010 8:04 AM

A.L.PURI said:

Mr.Karl Ketzer wrote: "The American Indians had an open-borders immigration policy, and look what happened to them."

Regarding letter from Chief Seattle, the issue is debatable; Refer write up of October 29, 1887, by Dr. Henry A. Smith. Anyhow it's the message that matters, not the author. And if it's conceived by Ted Perry ,n illegal immigrant, it matters more. There is a supreme law in force - The Natural Law. It was in force when American Indians were ruling their land. Some English people who were feeling suffocated in their Home land, left with gunpowder (Though history speaks different) and invaded Indian's America. According to that law they were illegal immigrants, invaders. They should have been deported back to Europe. Poor Indians had no force to extern them out...Africans were brought by force to American Continent by Law Abiding White Americans for 'Bonded Labor'. According to USA law during those years, weren't those 'Niggers' illegal Immigrants? If yes, then why they were not deported back? According to Natural Law they were illegally brought Immigrants. They earned civil rights after centuries of struggle. 'Large agricultural Interests'; Were they not parallel gov'.Was USA 'damned' or optimally developed to be called today as the only Super Power? Arizonian Immigrant's case is no different, except there is no transport cost to American in this case. 'Sound familiar'. Yes. And it will keep on. As long as you, taking lesson from Red Indians experience, do not act religiously to deport all immigrants, whether legal (to your compulsion) or illegal (to their need). And then where you will stand? --- No, you will not meet Red Indian's fate, you will have still worse .You will perish! In your own trash,which will be piling around you? Cause there will be no cheap labor force of 'Illegal Immigrants available to American economy to do such dirty jobs. MIND IT; DON'T DIG YOUR OWN GRAVE BY LOOKING ONLY BLACK SIDE OF THE PICTURE.I am no body to predict that come what may Seventeen Century ILLEGAL IMMIGRANTS to the American continent will be a minority in next couple of decades. This is Natural Law, you and I have no control over it.

April 28, 2010 6:24 PM

sam said:

An illegal who was about to graduate from college is busted at a traffic stop and threatened with deportation. The usual people are saying the usual things.

Student's Arrest Tests Immigration PolicyBy ROBBIE BROWNA college student who is an illegal immigrant has unwittingly provided the latest test of whether local officials should be enforcing federal immigration law.http://www.nytimes.com/2010/05/15/us/15student.html

May 15, 2010 9:49 AM

sam said:

The Times reports that the feds have filed suit against Arizona

Justice Dept. Sues Arizona Over Its Immigration LawBy JULIA PRESTONThe Justice Department's lawsuit argues that the state's law would undermine the federal government's pursuit of terrorists, gang members and other criminal immigrants.http://www.nytimes.com/2010/07/07/us/07immig.html?th&emc=th

The Justice Department filed a lawsuit on Tuesday against Arizona to challenge a new state law intended to combat illegal immigration, arguing that it would undermine the federal government's pursuit of terrorists, gang members and other criminal immigrants.

The feds claim that handling all the illegals the state will turn over to them will take too much time. That's ridiculous - the government just hired bazillions of new employees using our money.

July 7, 2010 6:06 AM

sam said:

SOME nations are worrying about undocumented travelers. A bunch of Iroquois wanted to travel to England for a Lacrosse tournament using passports issued by the tribal authorities. England would not let them enter even though Hillary tried to assure England that they were legitimate. The tribe members do not want to claim American citizenship.

Iroquois Defeated by Passport DisputeBy THOMAS KAPLANThe lacrosse team, known as the Nationals, had beenembroiled in a dispute with the British about usingtribal passports instead of ones issued by the UnitedStates or Canada.http://www.nytimes.com/2010/07/17/sports/17lacrosse.html

The dispute has superseded lacrosse, prompting diplomatic tap-dancing abroad and reigniting in the United States a centuries-old debate over the sovereignty of American Indian nations. The Iroquois refused to accept United States passports, saying they did not want to travel to an international competition on what they consider to be a foreign nation's passport.

"It's a tough one," Lyons said. "We're dealing with new regulations that have come about since 9/11, and we understand that."

The British government first objected to the team's travel plans last week, when it said the Iroquois players would not be allowed to travel to the tournament in Manchester, England, unless the United States vouched for their tribal passports and guaranteed the team would be allowed to re-enter the country.

The United States refused to do so until Wednesday, when Secretary of State Hillary Clinton granted the team a one-time waiver to travel without United States passports.

But later Wednesday, British officials informed the team it would not receive visas after all, dealing a blow to the team's hopes and angering several lawmakers who had lobbied on the team's behalf. Representative Dan Maffei, Democrat of New York, called the situation an "international embarrassment" and went so far as to question England's ability to host the 2012 Olympics.

American diplomats discussed the case with their British counterparts on Wednesday and Thursday, but the State Department spokesman P. J. Crowley signaled Friday that the team was out of luck.

"From our standpoint, we've done what we can do," Crowley told reporters in Washington. "It would appear to us at this point that the U.K. has made their final determination."

The British government indicated that was the case. A spokeswoman for the United Kingdom Border Agency said British officials had not changed their position.

That broader issue of the validity of tribal passports - which experts in American Indian law say have been allowed for international travel for several decades, even if the letter of the law forbids them to be used as replacements for United States passports - remains unresolved.